A few years ago, Darren Newman kicked off one of his employment law seminars by asking the participants which laws they would like to see abolished. There were plenty of suggestions but, after writing them up on a flip chart, Darren then explained either the likely unintended consequences of repeal, the political obstacles in the way or the fact that the laws were governed by EU directives. It was extremely unlikely, he concluded, that any of us would see our pet-hates removed from UK employment law, so we’d better just get on with it and deal with them.

It will come as no surprise to regular readers of this blog that my suggestion for the legal Room 101 was religious discrimination law. I knew before I said it that it derived from an EU directive so there was no chance of it being repealed but I wanted to have a moan about it anyway. Right from the time it was first mooted, I was against extending discrimination law to religion and I still think it was one of the European Commission’s, and the last government’s, less bright ideas. And I know there are a lot of contenders for that one!

The problem with religion is that it is indefinable. At least with race and gender, what is covered is pretty clear. What counts as religion and belief, though, is largely in the eye of the believer. There is no objective test for what counts as a bona fide religion or belief, therefore the potential for argument and litigation appears infinite.

A few weeks ago, on Radio 4, an academic interviewed on this subject (I can’t remember who) quipped that the only difference between a religion and a cult is time and numbers. We can all agree that the major branches of Christianity (2,000 years old, 2.2 billion adherents) and of Islam (1,500 years old, 1.6 billion adherents) are established religions. The more recent Sikhism (600 years old, 30 million adherents) and Mormonism (190 years old, 14 million adherents) qualify too. But what about Scientology (60 years old, 200,000 adherents)? What about the new Pagan religions that have appeared over the past century? How may adherents does a ‘bona fide’ religion have to have? A thousand? A hundred? A dozen? How long does it have to have been going before it is considered to be a ‘proper’ religion? A century? A decade? A couple of months?

When Directive 2000/78/EC first appeared, I predicted a rash of territory-marking claims as a few holier-than-thou religious zealots made demands of their employers and co-workers. And so it proved. Muslims, Christians and Pagans fighting for control of workplace prayer rooms, ‘offensive’ toy pigs being removed from workers’ desks, people refusing to do certain parts of their jobs and demanding that their colleagues cover for them every weekend.

However, if, next week, Eweida, Chaplin, Ladele and McFarlane win their cases at the European Court of Human Rights, they will, in effect, establish positive religious rights. An extension of workplace religious rights will increase the scope for workers to make demands of their employers and colleagues in the name of religion. The Archbishop of York and Lord Carey have complained that courts are being asked to rule on what counts as a requirement of faith. But if these cases go the way the esteemed clerics want them to, we will see a lot more of that. Expect to see legal challenges not only from Christians but from tattoo wearers, body piercers and, of course, Muslims demanding the right to wear the niqab.

The extension of religious rights into the workplace has already caused headaches for employers, though the courts’ interpretation of the law has, so far, thrown out the most excessive demands. The last thing we need, though, is any extension of those rights, either by an ECHR ruling or by the government bringing in new laws. As Darren said, “The potential for argument and costly litigation is enormous.”

Religion and belief are messy subjects and, had it been left to me, we would have kept them out of employment law altogether. On the whole, though, the way the law has been applied has meant that much of the chaos I feared didn’t happen and most of those who made unreasonable demands found little joy in the courts. It would be great if it could stay that way. Let’s hope that, on Tuesday, the ECHR agrees.

2 Responses to More workplace religious rights – the last thing we need!

While, as a humanist, I agree with all you have said above, I would make the point that religious belief is but one belief among others which any person can hold. I cannot cite the case but there was one case where an ex-employee brought a discrimination case against a former employer on the basis of his environmental beliefs – and won. In factual terms, the actual phrase employed is “religion and belief”. The recent case of Mba v London Borough of Merton resulted in a ruling that requiring a self-declared Christian to work on Sundays was judged inter alia ‘We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed. No such broad general issue arises. The questions raised must be determined in the specific circumstances of this particular case alone.’ by Mr Justice Langstaff. So, this judgment did not establish a general precedent on the subject but left it open for subsequent cases to be judged on the facts of their own situation. In this case, the religious claimant lost her case.
There is, of course, for those who want to register their extreme irritation with religious privilege, the possibility of becoming a Minister in the Church of the Most Holy Spaghetti Flying Monster. This pastafarian religious belief makes just as much sense as any other religion and – with its emphasis on male pirates and female wenches as a condition of belief in the church – will almost certainly see a number of people bringing cases under this form of religious belief as a means of discrediting the whole ridiculous facade. Already, someone in Austria has had their pastafarain religion recorded on their driving licence because of the insistence of the Austrian authorities on recording drivers’ religious affiliations on their driving licences.
One final caveat needs to be entered: it is not at all unusual for the popular press to mis-report the outcomes of cases of this sort. It seems they listen uncritically to the – usually – aggrieved losing claimant and their religio-legal representatives when writing up their journalistic versions of court or tribunal outcomes. Almost invariably, the popular press tend to get the facts on which the decision has been made wrong, as they are only interested in listening to one side of the case and are generally too lazy to carry out even basic research into the facts of the case. Even such an august publication as the Daily Telegraph has been guilty of this type of shoddy reporting.